The Lawrence Eagle Tribune reports that a door to door salesman got more than he bargained for when a potential customer, and New Hampshire town solicitor, invited him inside. The salesman was caught off guard when the would be consumer was nude and informed him that it was a nudist house. According to the Tribune, the solicitor apparently began masturbating which sent the salesman running for the authorities. An arrest warrant has issued charging the solicitor with indecent exposure and lewd and lascivious conduct.
In Massachusetts, these two crimes are often confused with one another. The crime of indecent exposure is typically charged when an individual is found relieving him or herself in public. The offense of indecent exposure is a misdemeanor in Massachusetts. The offense of open and gross or lewd and lascivious conduct is a felony and viewed as more serious in Massachusetts. Massachusetts General Laws chapter 272, §16 does not define “open and gross lewdness and lascivious behavior,” but five elements have been generated by case law. These five elements are as follows: (1) that the defendant has exposed his or her genitals, buttocks or female breasts to one or more persons; (2) the defendant did so intentionally; (3) the defendant did so openly, either intending public exposure or recklessly disregarding a substantial risk of public exposure, to others who might be offended by such conduct; (4) that the defendant’s act has been done in such a way to produce alarm or shock ; and (5) that one or more persons have in fact been alarmed or shocked by the defendant’s thus exposing himself. Commonwealth v. Kessler, 442 Mass. 770, 773 (2004). The type of conduct that the police usually charge a person with this type of offense is if it is alleged that a person was masturbating in public, engaging in sexual acts in public or exhibitionism. In certain situations, even expose a buttocks can be considered open and gross conduct.
If you have been charged with this type of crime it is critical that you have a Massachusetts attorney that knows the subtle differences between the two crimes. Convictions of these types of crimes can have collateral consequences such as having to register with the Sex Offender Registry Board [SORB] . Registration with SORB is only required with certain crimes and convictions. In order to ensure that you will not have to register relative to a certain disposition it is important to contact a successful Massachusetts defense attorney.
If you are facing these types of charges an attorney familiar with the elements necessary to charge this offense must review your case. In the event that he circumstances do not establish probable cause for the district attorney’s office to prosecute the case, a motion to dismiss the case should be filed prior to trial In the event this motion is allowed, the case will not go forward. Our Attorney has successfully defended these types of cases in Peabody and Lawrence District Courts.